At the time of Dorr's Rebellion the legislature of Rhode Island passed the following act: "Be it enacted . . . the State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is declared to be in full force, until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governor of the State,"

9 Reports on the Law of Civil Government in Territories Subject to Military Occupation, p. 12.

In the case of Luther v. Borden10 an action of trespass quare clausum fregit was brought by the plaintiff against the defend--ant for breaking and entering the house of Luther. Border set up as defense that he was a member of the military called out in defense of the old government, that he acted under orders, and that those orders were justified by the exigencies of the time. The case having reached the Supreme Court, Taney, in his opinion, said:

"In relation to the act of the legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by the State, unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the state authorities. And, unquestionably, a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of the military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain itself and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest anyone, who, from the information before them they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched, when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, and any injury wilfully done to person or property, the party by whom, or by whose order, it is committed, would undoubtedly be answerable."

10 7 How. 1; 12 L. ed. 581.